Ruling Against Prince and Gagosian Raises Thorny Issues

A U.S. District Court judge in New York City ruled on March 18 that Richard Prince had violated the copyright of French photographer Patrick Cariou when he produced his own collage paintings incorporating Cariou’s images of Jamaican Rastafarians (ANL, 1/20/09).

NEW YORK—A U.S. District Court judge in New York City ruled on March 18 that Richard Prince had violated the copyright of French photographer Patrick Cariou when he produced his own collage paintings incorporating Cariou’s images of Jamaican Rastafarians (ANL, 1/20/09).

Also found liable were Larry Gagosian and the Gagosian Gallery (the “Gagosian Defendants”), Prince’s representation since 2003. The gallery had exhibited the paintings in late 2008 and also published a catalogue.

Prince never denied that he used some photographic images he found in a 2000 book by Cariou called Yes Rasta (which documents the community of Rastafarians the French photographer encountered in the mountains of Jamaica), for collage painting, but he claimed that his use of Cariou’s work was “transformative”—that is, borrowing in the process of creating something that is entirely new. A transformative use of an existing image, such as for the purpose of commenting on or parodying it, is an accepted exception of the federal copyright law, known as “fair use.”

Gagosian attorney Ralph Lerner declined to comment on the decision.

In the ruling, Judge Deborah A. Batts found that Prince had violated Cariou’s copyright, writing in her opinion: “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.”

In her ruling Batts cited testimony from Cariou in which he described how a planned gallery show at Christiane Celle’s Clic Bookstore and Gallery, in New York, was canceled when the dealer learned of the 2008 Prince exhibit at Gagosian because Celle “did not want to seem to be capitalizing on Prince’s success or notoriety. . . and because she did not want to exhibit work which had been ‘done already’ at another gallery.”

Judge Batts’s proposed remedy in the case is to impound all of Prince’s paintings that made use of Cariou’s images and destroy them. She further ruled that the Gagosian Defendants were also subject to claims for copyright infringement, both directly and as “vicarious and contributory” parties.

Jessica Litman, a professor of law at the University of Michigan Law School said that aspect of the decision is one “that I am sure will not survive an appeal.”

Prince regularly uses images from other sources for his paintings. He had previously used photographic images by Jim Krantz for his “Marlboro Man” series of paintings. Krantz was unable to sue for copyright infringement, because Philip Morris, which owned all rights to the photographs, chose not to pursue action against Prince.

Prince contended that he used Cariou’s images as raw material—in the manner of an assemblage sculptor’s “found objects”—in order to create something that not only comments on the photographs’ previous meaning but also gives them new meaning.

The ruling also touches on the responsibilities of a gallery owner: “. . . the Gagosian Defendants had the right and ability to supervise Prince’s work, or at the very least the right and ability (and perhaps even responsibility) to ensure that Prince obtained licenses to use the Photos before they made Prince’s Paintings available for sale.” This has received a variety of reactions: “That goes too far,” Gilbert Edelson, administrative vice-president of the Art Dealers Association of America, said. “It is absurd to think that a dealer is now supposed to go into an artist’s studio to supervise.”

Scott Hodes, a lawyer in Chicago who has been involved in many art cases, claimed that Judge Batts “is holding dealers to a higher standard of due diligence, but the judge didn’t indicate what a gallery owner needs to know.”

Litman says she was “a little disturbed by the reasoning in the decision,” because it doesn’t “take into account the standards of the art world in which you can add something important even when you are ripping off someone else. The problem is that the copyright law doesn’t show solicitude for the practices of the art world.”